Jaidayal Prannath Kapur, CHENNAI V. ACIT, CHENNAI

ITA 455/CHNY/2015

• Counselvise Citation: 45521714 RSA 2015
• Duration Of Justice: 1 month(s) 1 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 07-04-2015
• Appeal Filed By: Assessee
• Bench Allotted: C
• Assessment Year: 2005-2006
• Appeal Filed On: 06-03-2015
• Court: TRIBUNAL
• Department Lawyers: A V SREEKANTH
• Assessee Lawyers: K MEENAKSHISUNDHARAM ITP
• Keywords: Depreciation; Opportunity of being heard
• Section: 147; 148

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL C BENCH, CHENNAI , . !' , # $% BEFORE SHRI CHANDRA POOJARI, ACCOUNTANT MEMBER AND SHRI V. DURGA RAO, JUDICIAL MEMBER ./ ITA NO. 455/MDS/2015 / ASSESSMENT YEAR : 2005-06 M/S. JAIDAYAL PRANNATH KAPUR, C/O MRS. RITU KAPUR, 9A, PENT HOUSE, 52, TAYLORS ROAD, KILPAUK, CHENNAI 600 010. PAN AAAFJ3186G APPELLANT) V. THE ASSISTANT COMMISSIONER OF INCOME-TAX, BUSINESS CIRCLE-VIII, CHENNAI. RESPONDENT) / APPELLANT BY : SHRI K. MEENAKSHISUNDHARAM, ITP / RESPONDENT BY : SHRI A.V.SREEKANTH, JCIT ! / DATE OF HEARING : 07.04.2015 '# ! / DATE OF PRONOUNCEMENT: 07.04.2015 & / O R D E R PER CHANDRA POOJARI, ACCOUNTANT MEMBER THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER OF THE COMMISSIONER OF INCOME-TAX(APPEALS) DATED 27 .11.2014. - - ITA 455/15 2 2. THE GRIEVANCE OF THE ASSESSEE IN THIS APPEAL IS WITH REGARD TO DISMISSING THE APPEAL WITHOUT GIVING PROP ER OPPORTUNITY OF BEING HEARD TO THE ASSESSEE BY THE COMMISSIONER OF INCOME- TAX(APPEALS). 3. TH E BRIEF FACTS OF THE C AS E ARE THAT T H E ASSESSEE F I LE D TH E R ET U RN OF INCOME FOR THE ASSESSMENT YEAR 2005-0 6 O N 28. 07.2005 A DMI TT I NG A TOTAL IN CO M E OF RS . 1 3 , 7 3 , 79 0/- . T HE RET U R N W AS PROC E SSE D U/S 1 4 3( 1 ) O F T HE A C T . WH I LE COM PL E T I N G T H E ASSE SSM ENT F O R A . Y . 2004 - 05 , ASSESSING OFFICER FOUND T HA T THE A SSESSEE HAD CLAIMED DEPRECIATION ON COMPOSITE VA L UE OF LAND AND BUILDING IN VARI OU S YEA RS . H OWEVER, AT THE TIME OF JOIN T VENTURE A GREEMENT, THE ASSESSEE WANTED TO S P LIT THE COST OF LA N D AND BUI L DING AND HAD NOT DECLARED SEPARAT E VA LU E FO R L A N D A ND BUILDIN G IN T H E BA L A N CE SHEET. HOWEVER, TH E ASSESSEE C LAIMED DE P REC I A TI ON T R EATI N G T HE LA ND A ND BUILDING AS A SIN G L E ASSET. T H E ASSESSING OFFICER WA NT E D TO T R EA T W HOL E A SS E T AS ON E ASSE T A ND AL L OW D EPRECIATION ON IT. HENCE, AO CA L CU L ATED SHORT TERM CA PIT A L G AINS AS P E R SEC.50 OF THE ACT FOR THE A.Y . 200 4- - - ITA 455/15 3 05. THIS P OI N T WAS U PHELD B Y TH E C I T ( A) A N D T H E H O N 'B L E I T AT SU B SE QU E NTL Y . HENCE , AFTER OBTAINING APPROVAL F R OM T HE JC I T, T H E ASSESSMENT FOR THE A.Y. 2005-06 O F TH E ASSESSEE W AS RE - OPENED BY ISSUE OF NOTICE U/S 148 ON 05 .07.2 01 1 . IN R ES P O N SE, N O R E P LY RECEIVE D FROM THE ASSESSEE FIRM OR I TS P A R T N E R S/A U T H O R ISE D RE P RESE N TA TI VE. W ITH D U E P E RMI SSION FROM THE JCIT , TH E A O CA RRI E D O UT S P OT I N S P E CTI O N A T TH E PL ACE O F MR S . R IT U KA PUR (P A R T N E R OF TH E A S S ESS EE FI RM) . NON E A PP EARE D A ND FINA LL Y A L ETTE R W AS FIL E D IN T A P A L ON 13 . 02 . 2 01 3 B EFO R E TH E A O. THE R E L EVA NT P O R TIO N O F T H E SAME A S REPRODU CED IN T H E AS S ES SM EN T O RD E R IS AS U N D E R: ' THE FIRM HAS BEEN CLOSED AS ON 01 . 04 . 2006 W I TH THE RETIREMENT OF THE PARTNER , PREETI K A KAPUR F R OM THE FIRM O N 0 1 . 04.200 6 . THE FIRM HAD BE E N TAKEN OVER BY THE OTHER PARTNER , MRS . R I TU KAPUR W . E . F . 01 . 04 . 2 00 6 . THERE HAD BEEN T HEREFORE NO FIRM FOR 200 7 -0 8 AND 2 008 - 0 9. IT I S OF COURSE TRUE THAT THE FIRM HAD NOT FILE D THE N I L RE TU RN S F OR T H E SE YEA R S . THE FAILURE IS VERY MUCH REGRETTED AND IN VIEW OF THE GROUND REALI TY T HAT THERE HAD BEEN NO FIRM FOR THESE TWO YEARS, THE ASSESSMENTS MAY BE CLOSED AS NO PROCEEDINGS FOR THESE TWO YEARS OF 2007-08 AND 2008-09. REGARDING T H E ASSESSMENT S F O R 2005-06 AND 2006-07 , THE COPIES OF T HE RETUR N S F I L ED F OR T H ES E TW O YE A RS ARE ENCL OS ED . TH E R E H A D BEEN NO ESCAPEME N T OF - - ITA 455/15 4 IN CO ME FOR THE S E TWO YEARS . THE ORIGIN A L RE T URNS FILED MAY BE T REATED AS RETURNS FI L ED I N RESPONSE TO ASS E SSEE NOTICES UNDE R SECTION 148 . ' ACCORDINGLY, THE ASSESSMENT WAS COMPLETED U/S.144 R .W.S.147 OF THE ACT BY THE ASSESSING OFFICER ON 31.3.2013 BY MA KING ADDITIONS TO RETURNED INCOME OF ` 13,73,790/- TO THE EXTENT OF ` 46,19,308/- UNDER SHORT TERM CAPITAL GAINS AND DETE RMINING THE ASSESSED INCOME AT ` 59,93,100/-. AGGRIEVED BY THE ASSESSMENT ORDER, THE ASSESSEE WENT IN APPEAL BEFOR E THE COMMISSIONER OF INCOME-TAX(APPEALS). 4. THE COMMISSIONER OF INCOME-TAX(APPEALS), WITHOUT GIVING PROPER OPPORTUNITY OF BEING HEARD TO THE ASSESSEE, DISMISSED THE APPEAL. AGAINST THIS, THE ASSESSEE IS IN APPEAL BE FORE US. 5. THE LEARNED AR SUBMITTED THAT T HE COMMISSIONER OF INCOME-TAX(APPEALS) WRONGLY RECORDED THAT THERE WAS NO APPEARANCE BY THE ASSESSEE OR HIS REPRESENTATIVE NO R WAS THERE ANY PETITION FOR ADJOURNMENT ON 24.11.2014, WHEN THE CASE WAS POSTED FOR HEARING. HE ALSO SUBMITTED THAT THE A SSESSEE'S REPRESENTATIVE, SRI.K.MEENAKSHISUNDHARAM APPEARED O N BEHALF OF THE ASSESSEE ON 24.11.2014 AT 4 PM, AS HE COULD NOT APPEAR - - ITA 455/15 5 AT 11 . 30 AM OWING TO HIS OFFICIAL WORK IN THE INCOME TAX APPELLATE TRIBUNAL, CHENNAI ON THAT DAY IN THE MORN ING. FURTHER HE SUBMITTED THAT THE COMMISSIONER(APPEALS) CALLED FOR THE REPRESENTATIVE BY 4.10PM AND ALSO CALLED FOR THE AP PEAL FILE OF THE ASSESSEE FROM HIS OFFICE STAFF. ACCORDING TO T HE LD. AR, THE REPRESENTATIVE OF THE ASSESSEE WAS WITH THE COMMISSIONER(APPEALS) IN HIS ROOM TILL 4 . 45 PM AND THE COMMISSIONER (APPEALS) ASKED THE REPRESENTATIVE TO APPEAR NEXT DAY, AS HIS STAFF MR.VINOD TOLD THE COMMISSIONER (A PPEALS) IN THE PRESENCE OF THE REPRESENTATIVE THAT THE APPEAL FILE WAS MISSING AND COULD NOT BE IMMEDIATELY FOUND OUT. HE FURTHE R SUBMITTED THAT THE ASSESSEES REPRESENTATIVE, SHRI K.MEENAKSHISUNDHARA M HAD ENTERED THE I.T.A.NO OF THE CASE , HIS PHONE NUMBER AND THE TIME OF ARRIVAL ON 24.11.2014 IN THE VISITORS REGIS TER, BUT THE COMMISSIONER (APPEALS) WITHOUT LOOKING INTO THE VIS ITORS REGISTER KEPT IN HIS OFFICE, CAME TO THE CONCLUSION THAT THE RE WAS NO RESPONSE ON THE DATE OF HEARING. HE FURTHER SUBMITTED THAT TH E SAME REPRESENTATIVE WENT TO MEET THE COMMISSIONER(A PPEALS) ON 25.11.2014 AT 3 PM, AS DIRECTED BY THE COMMISSIO NER (APPEALS) ON 24.11.2014. SINCE THE CONCERNED COMM ISSIONER - - ITA 455/15 6 (APPEALS) WAS CONVERSING W ITH A NOTH ER COMMISSIONER (APPEALS) IN ANOTHER ROOM, THE REPRESENTATIVE WAITED FOR THE COMMISSIONER (APPEALS) TILL 5 . 30 PM AND THE C OMMI SS IONER (APPEALS) DID NOT RETURN TO HIS ROOM TILL 5 . 30PM. AS T H E O FF I CE HOURS WERE OVER AND SINCE ALL THE ST A FF WERE L EAV IN G T H E O FF IC E B Y THAT TIME, THE R E PR E SENTATIVE ALSO LEFT THE OF FI CE HOPIN G TH A T A NOTHER HE A RING NOTICE WILL COME TO THE A SSESSEE. ACCORDING TO THE LD. AR, TH E L EA RN E D COMMISSIONER (APPEALS) ERRED IN DISMISSING THE A PP EA L IN LIMINE ON WRONG INFORMATION THAT THE ASSESSEE WA S NOT INTER ES T E D I N PROSECUTING THE APPEAL . THE LD. AR SUBMITTED THAT THE APPEALS REFERRED TO IN THE ORDER AS HAVING BEEN DI S MISS E D BY THE COMMISSIONER (APPEALS) AND THE T RIBUN A L W ERE DISPOSED OF ALL APPEALS FOR EARLIER YEARS AND ON DIFFERENT ISSU ES NOT H AV IN G A N Y R E L EV ANC E TO THE ISSUES IN V OL V ED IN THE INSTANT APPE A L . HE ALSO SUBMITTED THAT T H E ASSESSEE CR AVES LEAVE TO FILE ADDITIONAL GROUNDS A ND A DDITIONAL EV ID E N CES AS THE H E ARIN G PROGRESSES IN ACCORDANCE WITH LAW A ND PR O CE DUR ES . FINALLY, THE LD. AR PRAYED THAT THE T RIBUN A L MAY BE PLEASED TO RESTORE THE APPEAL TO THE FILE OF THE CO MMI SS IONER OF INCOME TAX(APPEALS) FOR FRESH DISPOSAL IN ACCORD A NCE WITH L AW . - - ITA 455/15 7 6. ON THE OTHER HAND, THE LD. DR SUBMITTED THAT THO UGH PROPER OPPORTUNITY WAS GIVEN TO THE ASSESSEE, THE S AME WAS NOT USED BY THE ASSESSEE IN PROPER PERSPECTIVE. HENCE, THERE IS NO DEFAULT FROM THE DEPARTMENT IN GIVING OPPORTUNITY T O THE ASSESSEE. HE RELIED ON THE ORDER OF THE COMMISSION ER OF INCOME-TAX(APPEALS). 7. WE HAVE HEARD BOTH THE PARTIES AND PERUSED THE MATERIALS ON RECORD. THE ORDER WAS PASSED BY THE COMMISSIONER OF INCOME-TAX(APPEALS) WITHOUT PARTICI PATION OF THE ASSESSEE OR ASSESSEES COUNSEL. IN THIS CASE, IT IS APPROPRIATE TO GIVE ONE MORE OPPORTUNITY TO THE ASS ESSEE TO PUT FORTH ITS CASE BEFORE THE LOWER AUTHORITIES. IN OU R OPINION, THE ORDER PASSED BY THE ASSESSING OFFICER IS ALSO EX PA RTE, U/S.144 R.W.S. 147 OF THE ACT. HENCE, WE REMIT THE ENTIRE ISSUES TO THE FILE OF THE ASSESSING OFFICER FOR FRESH CONSIDERATION AN D THE ASSESSEE IS DIRECTED TO CO-OPERATE WITH THE DEPARTMENT AND P UT FORTH ALL THE NECESSARY DOCUMENTS TO SUPPORT ITS CASE. 8. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. - - ITA 455/15 8 ORDER PRONOUNCED IN THE OPEN COURT AT TH E TIME OF HEARING ON TUESDAY, THE 7 TH OF APRIL, 2015 AT CHENNAI. SD/- SD/- ( . $ % ) ( & ' ( ) ) *+,-./01023 45067.082290.:3 ; $< /JUDICIAL MEMBER ! $<=>>2-6?06?@ABCA. &; /CHENNAI, D$ /DATED, THE 7 TH APRIL, 2015. MPO* $E FGHG /COPY TO: 1. /APPELLANT 2. /RESPONDENT 3. I3 /CIT(A) 4. I /CIT 5. GJ% K /DR 6. %LM /GF.